McPhail v Persons, Names Unknown: CA 1973

The court was asked to make an order against persons unknown in order to recover land. Although an owner of land which was being occupied by squatters was entitled to take the remedy into his own hand, he was encouraged to go to a common law court and obtain an order that he ‘do recover’ the land, and to issue a writ of possession immediately. The sheriff would execute the writ, although once the owner had obtained his order he was entitled to take possession at once by his own hand. Because he could lawfully take possession at once without the help of the court, the courts of common law never suspended the order for possession. Anyone who was squatting on the premises could be turned out at once. There was no provision for giving any time.
Lord Denning said that a court of equity would never intervene in aid of someone wrongfully in possession of land so as to suspend an order for possession. ‘Seeing that in the case of a tenancy the owner is not entitled to regain possession himself by his own self-help, and that he is bound to come to the court to recover possession, it follows that the courts are able to fix a date on which possession shall be recovered. At any rate, the House of Lords has proceeded on that assumption (see J. and F. Stone Lighting and Radio Ltd. v. Levitt [1947] A.C. 209, 216); and Parliament has done likewise. Thus in section 138 of the County Courts Act 1888, Parliament said that at the end of a tenancy the judge may order possession to be given’ either forthwith or on or before such day as the judge shall think fit to name; . . ‘That section was repealed by the County Courts Act 1934 and replaced by a simple provision in section 48 that ‘A county court shall have jurisdiction to hear and determine any action for the recovery of land . . ‘ But the Act of 1934 was a consolidating Act. It did not alter the previous law. It certainly did not take away the power given by section 138 of the Act of 1888. It proceeded on the assumption that at the end of a tenancy a court has power to fix a date on or before which possession should be given. All the textbook writers, without exception, say that the county court has this power. Likewise in the Protection from Eviction Act 1964, Parliament in section 2 (1) said that when the court made an order for possession by the owner against the occupier:
‘…the court may suspend the execution of the order for such period, not exceeding 12 months from the date of the order, as the court thinks reasonable.’
That section was repealed by the Rent Act 1965 [section 52 and Schedule 7, Part 1], but Parliament cannot thereby have intended to take away the power of the court at the end of a tenancy to suspend the execution of its order. It simply left intact its previous power.
If the county court has the power at the end of the tenancy to fix a date, then the High Court must have the like power. The County Courts Acts have always provided for the transfer of actions from the county court to the High Court, and vice versa, as for instance sections 49 and 50 of the County Courts Act 1959. It cannot be that, on such a transfer, the High Court has less power than the county court.
In my opinion, therefore, when a tenancy has come to an end, the landlord is not entitled to take possession except by an order of the court: and, on making the order, the court has power to fix a date for possession.’
Lawton LJ said: ‘squatters were never able to enlist the aid of the Court of Chancery to resist a writ of possession and they cannot now. The position of tenants and licensees holding over may be different.’
Lord Denning MR, Lawton LJ
[1973] 3 All ER 393, [1973] Ch 447
Rules of the Supreme Court 113
England and Wales
DoubtedIn Re Wykeham Terrace ChD 1971
Squatters had broken into and were in occupation of vacant premises. The plaintiff owner did not know their names. He applied for an order for possession by means of an ex parte originating summons to which there was no defendant. Service was . .

Cited by:
CitedBloomsbury Publishing Group Ltd and J K Rowling v News Group Newspapers Ltd and others ChD 23-May-2003
The publishers had gone to great lengths to keep advance copies of a forthcoming book in the Harry Potter series secret. They became aware that some had been stolen from the printers and sought injunctions against the defendants and another unnamed . .
CitedKay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
CitedBristol City Council v Hassan and Glastonbury CA 23-May-2006
The council had obtained possession orders for two properties from secure tenants, but the orders were suspended for so long as rent arrears were being discharged. The judges had understood that a date must appear on the possession order.
CitedDesnousse v London Borough of Newham and others CA 17-May-2006
The occupier had been granted a temporary licence by the authority under the homelessness provisions whilst it made its assessment. The assessment concluded that she had become homeless intentionally, and therefore terminated the licence and set out . .
AppliedSwordheath Properties Ltd v Floyd 1978
The rules relatng to the grant of immediate possession to a landowner as against squatters applied in the County Court just as much as in the High Court. The amount of damages payable by a trespasser on land is ordinarily the letting value of the . .
AppliedBoyland and Son Ltd v Rand and Others CA 20-Dec-2006
The defendant squatters sought leave to appeal an order for immediate possession.
Held: (As citeable authority) MacPhail remained good law despite the passing of the 1980 Act, and an order for immediate possession was correct. . .
CitedLondon Borough of Lewisham v Malcolm and Disability Rights Commission CA 25-Jul-2007
The court was asked, whether asked to grant possession against a disabled tenant where the grounds for possession were mandatory. The defendant was a secure tenant with a history of psychiatric disability. He had set out to buy his flat, but the . .
Still Good LawBoyland and Son Ltd v Rand CA 20-Dec-2006
The defendant travellers occupied land belonging to the claimants. A possession order had been obtained, and the defendants now sought a reasonable time to be allowed to leave.
Held: The law had not changed, and section 89 could not be used to . .
CitedSecretary of State for Environment, Food, and Rural Affairs v Meier and Others SC 1-Dec-2009
The claimant sought a possession order to recover land from trespassers. The court considered whether a possession order was available where not all the land was occupied, and it was feared that the occupiers might simply move onto a different part. . .
CitedPritchard and Others v Teitelbaum and Others ChD 20-Apr-2011
The claimants sought orders allowing them to re-enter the tenanted properties after eviction in order to allow them recover their possessions left behind. Proceedings for recovery of possession had continued over several years.
Held: The . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 September 2021; Ref: scu.183362